Saturday, May 25, 2013

In North Carolina's "Right to Counsel" Bill, Far Less Than Meets the Eye

The “Dear Colleague” letter (about which I’ve frequently written over at MTC) featured a three-pronged assault on the due process rights
of college students accused of sexual assault. First, it ordered colleges to
adjudicate such matters through a “preponderance of evidence” (50.01%)
standard, thereby dramatically increasing the likelihood that innocent students
will be branded rapists by their schools. Second, it forced colleges to institute
a double jeopardy scheme that allows accusers to appeal not-guilty findings even
under the reduced threshold. Finally, it strongly encouraged colleges to deny
accused students the right to cross-examine their accusers—even though in
claims of acquaintance rape, the accuser might be the only witness against the
accused.

As hostile to due process as the “Dear Colleague” scheme is,
however, the document at the very least didn’t explicitly deny the right of
accused students to be represented by counsel in disciplinary proceedings. A cynic
might say the letter didn’t haveto
issue such a mandate, since most colleges already
bar lawyers from their disciplinary processes.

This oversight, however, provides an opening (at least at
public universities) for state legislatures to restore some semblance of due
process for students accused of sexual misconduct. Nothing in the “Dear
Colleague” letter prevents state legislatures from passing laws ordering public
universities to let accused students have full, robust legal representation. And given
the sudden, bipartisan interest in due process amidst the IRS and AP subpoena “scandals,”
the political environment is unusually suitable for politicians to act.

The bill contained only one clause, entitled “Student disciplinary
proceedings – student’s right to counsel,” and provided a much-needed reform on
behalf of due process. It held that “any student enrolled at a constituent
institution or student organization at a constituent institution that is
accused of a violation of the disciplinary or conduct rules of the constituent institution
and that wants legal representation may be represented by an attorney during
any formal stage of any disciplinary procedure or other procedure adopted and
used by the constituent institution regarding the charge of misconduct against
the student or student organization.”

The bill was referred to the House Education Committee,
where it languished for a month. Last week, it was withdrawn from the committee
and referred instead to the Rules Committee, which substantially rewrote the
bill. Though still promising a “right to counsel for students and organizations”
in disciplinary proceedings, the measure actually does no such thing.

Here’s the
new text, with the relevant sections gutting due process in bold:

“Any student enrolled at a constituent institution who is
accused of a violation of the disciplinary or conduct rules of the constituent
institution shall have the right to be represented by a licensed attorney or non-attorney advocate who may fully
participate during any disciplinary procedure or other procedure adopted and
used by the constituent institution regarding the alleged violation. However, a
student shall not have the right to be
represented by a licensed attorneyor
non-attorney advocate in either of the following circumstances:

(1) If the
constituent institution has implemented a ‘Student Honor Court’ which is fully
staffed by students to address such violations.

(2) For any allegation of ‘academic dishonesty’ as defined
by the constituent institution.”

The amendments to the bill have so altered the original
measure to render it meaningless.

First, the bill no longer provides a “right
to counsel,” at least as the word is commonly understood (an attorney). Instead,
the bill requires colleges to allow students to be represented by an attorney or
by a “non-attorney advocate.” In short, all the bill envisions is codifying the
ways in which universities give a phony sense of due process by suggesting that
an “advocate” (a faculty member, a fellow student, even a family member) can
safeguard a student’s rights even if lawyers are excluded from the disciplinary proceedings. Despite the
now-misleading title, no student facing charges before a college disciplinary
tribunal in North Carolina will gain the “right to counsel” if the amended bill
passes.

Second, even the gutted “right to counsel” doesn’t apply if
the school “has implemented a ‘Student Honor Court’ which is fully staffed by
students to address such violations.” This provision, if construed broadly, would seem to exempt
every disciplinary proceeding at a North Carolina public university except for
one—the University of North Carolina’s recently-adopted
sexual misconduct procedure, one of the earliest responses to the “Dear
Colleague” letter. (UNC formally set up a two-tier system of campus justice in
which students accused of sexual assault would both be judged by a lower
standard than students accused of other offenses on campus, and would have
their cases heard not by students but by a specially “trained” panel of . . .
sensitive . . . administrators and students.)

Even at UNC, however, the law wouldn’t require students
accused of sexual misconduct to be represented by a lawyer, only by a “non-attorney
advocate.” And that “right” already exists: an accused student receives an “advisor”to assist “with pre-hearing procedures and the presentation of witnesses and
evidence at the hearing or at any subsequent proceedings. Only currently
enrolled students or employed staff members of the University shall serve as
advisors to the parties.” And that “advisor”—or “non-attorney advocate,” in the
bill’s language—can’t do much once the hearing begins, since a student accused
of sexual assault, or his “advisor,” “shall not have the right to question
another party; however, each party may submit proposed questions to the panel
for panel members to ask of the other party if the panel members determine, in their
sole discretion, that the proposed questions are designed to elicit relevant
information.”

To review: the amended bill won’t provide any accused
student in North Carolina a right to counsel; it won’t even apply to most
disciplinary processes at North Carolina’s public colleges and universities;
and it will have no effect on the one procedure (UNC’s new sexual assault
standards) to which it clearly would apply.

Last week, the North Carolina House of Representatives
passed the bill by a margin of 112-1, with only Wake County Republican Jim Fulghum
voting no. The measure currently awaits action in the Senate.

The upper chamber should reject the bill, and if the bill
passes, Governor McCrory should veto it. Not only is the measure, as currently constituted,
meaningless, a strong case could be made that the bill is harmful, because it
creates the false impression that a “right to counsel” exists when, in fact, no
such right is present.

This shows the power of the feminist movement with the Obama administration. There are four Morehouse male students accused of rape; it's going to be interesting to see how their trials by the student/administration progress.

I contacted my state senator and asked him to vote against it. However, I don't have a good feeling about the odds of a successful opposition. Does anyone know why the bill was watered down to nothingness?

The AJC has printed an article about the three Morehouse students accused of raping a drunken coed from Agnes Scott college - the District Attorney has charged them with several crimes but the defense has witnesses that claim the coed fought them off when they tried to get her to leave the frat house; nothing in the article about any actions by Morehouse administration, but, since the three males are in jail, I guess there's no hurry to mete out discipline, like suspention.Big Al

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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